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Subject: EDRi-gram newsletter - Number 6.24, 17 December 2008
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EDRi-gram
biweekly newsletter about digital civil rights in Europe
Number 6.24, 17 December 2008
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Contents
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1. ECHR decided against the UK DNA Database 2. Wikipedia filtered by UK ISPs for cover album picture 3. ECHR rules on identifying serious privacy infringers 4. Romanian Authority asks ISPs to block 40 pornographic websites 5. Bulgarian Court annuls a vague article of the data retention law 6. Snooping law, "Lex Nokia", proceeding slowly but surely in Finland 7. German Federal Archives provides Wikipedia with 100 000 images 8. UK Government now in favour of the extension of the copyright term 9. Spanish collective society fined for making clandestine wedding video 10. ENDitorial: First FRA Conference on Fundamental Rights 11. Recommended Reading 12. Agenda 13. About
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1. ECHR decided against the UK DNA Database ============================================================
On 4 December 2008, the European Court of Human Rights (ECHR) gave its judgement in the Marper case related to the controversial National DNA Database used by the UK Police for criminal investigations, stating the retention of cellular samples, fingerprints and DNA profiles constitutes an infringement of the right for private life as per Article 8 of the European Convention on Human Rights.
The case was brought to court in 2004 by Michael Marper and a boy called "S"
who, in separate, unrelated cases, had been taken their DNA after having been arrested. The charges were dropped in both cases but the UK police refused to destroy the DNA samples of the two individuals on the basis of the British law which allowed the retention of DNA and fingerprints.
ECHR based its decision on Article 8 of the European Convention on Human Rights and decided that the indefinite retention by the UK Government and Police of innocent people's DNA and fingerprints was illegal. "In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society."
The court dismissed all arguments brought by the UK Government, stating that "England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence". One of the main concerns expressed by the court was "the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons," the ruling adding that especially the retention of children's data following acquittal could be harmful, "given their special situation and the importance of their development and integration in society."
Following this decision, the UK Government is expected to change its present legislation which allows the police to retain samples of people who are not convicted.
According to reports, there are about 4.5 million samples presently stored in UK DNA database, out of which more than 850 000 are from people with no criminal record. The creation of a DNA database has been questioned by many people. The Information Commissioners Office made a statement last year on this issue warning on the dangers of such a database: "There are significant risks associated with creating a universal database: it would be highly intrusive, and the more information collected about us, the greater the risk of false matches and other mistakes. The potential for technical and human error leading to serious consequences cannot be under estimated."
Shadow Home Secretary Dominic Grieve also warned on the dangers brought by the fact that the database can be checked by EU member countries against sensitive personal information. "There is a real risk that a disproportionate number of innocent British citizens will be sucked into foreign criminal investigations."
The House of Lords has passed an amendment to the Counter Terrorism Bill, proposed on 4 November by Baroness Hanham that would force the Government to show to people how they can have their samples removed from the database.
"This amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them and under what circumstances a request can be made by them to have samples taken during an investigation by the police destroyed," said Baroness Hanham.
One possible approach of the UK Government, which would be accepted by ECHR, could be that of Scotland police. According to the Scottish Criminal Procedure Act, an individual's DNA samples and resulting profile must be destroyed if the individual is not convicted or is granted an absolute discharge. Biological samples and profiles may, however, be retained for three years in case the respective person is suspected of certain sexual or violent offences even if not convicted.
European Court of Human Rights - Grand Chamber Judgement - Case of S. and Marper v. The United Kingdom (4.12.2008)
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843941&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
Innocent Britons 'may be branded criminals abroad' after Big Brother databases agreement (15.12.2008) http://www.telegraph.co.uk/news/worldnews/europe/3761189/Innocent-Britons-may-be-branded-criminals-abroad-after-Big-Brother-databases-agreement.html
S. and Michael Marper v. The United Kingdom (DNA Retention) (28.05.2008) http://whereismydata.wordpress.com/2008/05/28/s-and-michael-marper-v-the-united-kingdom-dna-retention/
DNA retention policy breaches human rights, rules ECHR (4.12.2008)
http://www.out-law.com/page-9639
Lords demand amendment to help the innocent get DNA off database (6.11.2008)
http://www.out-law.com/page-9564
EDRi-gram: UK DNA database errors raise concerns (5.07.2007) http://www.edri.org/edrigram/number5.23/uk-dna-database-error
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2. Wikipedia filtered by UK ISPs for cover album picture ============================================================
Wikipedia administrators found on 5 December 2008 that six British ISPs were filtering the access to their site, after Internet Watch Foundation (IWF) had put the online encyclopedia on a child-pornography blacklist for its article on Virgin Killer, the record album of the German band the Scorpions.
The action was taken following a report occurred on 4 December through IWF's online reporting mechanism on the article which presents the album and its original cover depicting a naked prepubescent girl. The cover was banned in many countries and replaced by another cover when the album was issued in 1976.
IWF stated that "As with all potentially illegal online child sexual abuse reports we receive, the image was assessed according to current UK legislation and in accordance with the UK Sentencing Guidelines Council (page 109). The content was considered to be a potentially illegal indecent image of a child under the age of 18, hosted outside the UK. As such, in accordance with IWF procedures, the specific webpage was added to the IWF list. This list is provided to ISPs and other companies in the online sector to help protect their customers from inadvertent exposure to potentially illegal indecent images of children."
David Gerard, unofficial spokesman for Wikipedia UK, argued that ISPs were blocking not only the image but the associated text of the article. "Part of the problem lies in the fact that the IWF have not just blocked the offending image, but have blocked the accompanying text as well.
We cannot be certain, but we suspect that had they stuck to their remit of focussing on pictures, the problem might not have arisen."
In some cases, UK users could not edit Wikipedia pages, in others it seems they could not view it at all. Moreover, because the six ISPs are routing Wikipedia traffic through transparent proxies, an enormous amount of what would appear to be Wikipedia editors seem to come from the same IP range. A single IP may identify all Virgin Media users, which means that if Wikipedia admins decided to ban one Virgin Media customer for inappropriate edits, they might ban all Virgin Media customers. One of the messages received by UK users read: "Wikipedia has been added to an Internet Watch Foundation UK website blacklist, and your Internet service provider has decided to block part of your access. Unfortunately, this also makes it impossible for us to differentiate between different users, and block those abusing the site without blocking other innocent people as well."
Although legally correct in classifying the cover album image as illegal in UK under the Sexual Offences Act 2003, as the image does not link to sites with similar material and is not hosted on such a site, IWF, which compiles its blacklist manually, could have applied the Notice and Take-down procedure in order not to disrupt other legitimate uses of Wikimedia. On the other hand, Wikipedia's editors, although not contacted or notified by IWF or the ISPs, have considered the issue of taking the image down but decided against it, considering this measure a form of censorship.
On 9 December, IWF Board announced that after considering the context of the case and the fact that the image had existed for some time already and it was also widely available, it had decided to remove this webpage from its blacklist. Moreover: "Any further reported instances of this image which are hosted abroad, will not be added to the list. Any further reported instances of this image which are hosted in the UK will be assessed in line with IWF procedures."
The blacklist has also had results outside UK. In Finland, Teliasonera, a large ISP, also censored the Wikipedia article. The reason given out was a configuration error causing the ISP to use the IWF censorship list in addition to the police provided list.
Richard Clayton from EDRi-member FIPR-UK looked in depth on the technical aspects of the censoring of Wikipedia to underline the fact that the IWF chose to filter text pages on Wikipedia rather than just the images they were concerned or that different capitalisations of URLs, the different blocking technologies, and the different implementation timescales led to considerable confusion as to who blocked what and when.
"Some of these matters could be described as "human error" and might be done better in any re-run of these events with any of the other questionable images hosted on Wikipedia (and many other mainstream sites). However, most of the differences in the effectiveness of the attempted censorship stem directly from diverse blocking system designs - and we can expect to see them recur in future incidents. The bottom line is that these blocking systems are fragile, easy to evade (even unintentionally), and little more than a fig leaf to save the IWF's blushes in being so ineffective at getting child abuse image websites removed in a timely manner" concludes Richard.
Brit ISPs censor Wikipedia over 'child porn' album cover (7.12.2008) http://www.theregister.co.uk/2008/12/07/brit_isps_censor_wikipedia/
IWF statement regarding Wikipedia webpage (9.12.2008) http://iwf.org.uk/media/news.251.htm
UK ISPS lock out Wikipedia in filtering error (7.12.2008)
http://www.iptegrity.com/index.php?option=com_content&task=view&id=219&Itemid=9
Finnish internet censorship expanding: Wikipedia article censored
(7.12.2008)
http://blog.fealdia.org/2008/12/07/finnish-internet-censorship-expanding-wikipedia-article-censored/
Technical aspects of the censoring of Wikipedia (11.12.2008) http://www.lightbluetouchpaper.org/2008/12/11/technical-aspects-of-the-censoring-of-wikipedia/
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3. ECHR rules on identifying serious privacy infringers ============================================================
On 2 December 2008, the European Court of Human Rights (ECHR) gave its judgement on the case K.U. v. Finland, considering that Article 8 of the Convention asks for national laws that will protect people from serious privacy infringements on the Internet, but at the same time demands a legal framwork that permits the identification and prosecution of offenders, respecting digital rights.
In this case brought to the ECHR an unknown person or persons placed an advertisement on a dating site on the Internet in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older "to show him the way". The applicant became aware of the announcement on the Internet when he received an e-mail from a man, offering to meet him and "then to see what you want".
The applicant's father requested the police to identify the person who had placed the advertisement in order to bring that person to court. The service provider, however, refused to reveal the identity of the holder of the IP address in question, considering itself bound by the confidentiality of telecommunications as defined by law. The Finnish courts could not help the father, considering that the law in force at that time provided for this information to be revealed only in respect of the criminal offences.
Therefore the applicant asked the ECHR to judge if the fake ad did not consitute a violation of his right to a private life under Art. 8 of the ECHR and if he had not been denied an effective remedy for that violation under Art. 13 ECHR.
The court held that Finland was in breach of its obligations under Article 8, because it didn't provide an effective criminal sanction for the violation of the applicant's rights. Consequently the court did not continue to consider the issue under Article 13.
The court considers that serious privacy infringements need to be considered by the legal framework of the states: "While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State's margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions ."
ECHR concludes by explaining that Article 8 should be interpreted in order to provide the legal framework to identify wrongdoers and bring them to justice, respecting the human rights on the Internet (freedom of expression and confidentiality of communications):
"The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. "
TJ McIntyre from EDRi-member Digital Rights Ireland is commenting on the text that raises a number of questions on the practical implications of the
case:
"The court points out that it is dealing with a "grave" criminal offence, which leaves open the question of whether the reasoning would apply to less serious offences or to civil matters only. It also limits itself to requiring a national balancing framework between the rights of an alleged victim and the general rights of privacy in communications and freedom of expression - presumably within that framework states will enjoy a significant margin of appreciation. On the other hand, it rejects the argument that other systems (such as notice and takedown or intermediary
liability) can suffice, insisting instead on requiring identification of users. It also focuses on the "ability of the victim to obtain financial reparation", which seems to extend the reasoning to civil matters also."
Judgement Case of K.U. v. FINLAND (2.12.2008)
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843777&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
Identifying Individuals in Internet Iniquity: ECHR rules on naming wrongdoers (2.12.2008) http://www.tjmcintyre.com/2008/12/identifying-individuals-in-internet.html
K.U. v. Finland: No Data Retention Obligation (15.12.2008)
http://www.jorisvanhoboken.nl/?p=236
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4. Romanian Authority asks ISPs to block 40 pornographic websites ============================================================
The Romanian Authority for Communication (ANC) requested ISPs last week to block the access to 40 websites hosted in Romania, considering they don't meet the criteria imposed by article 7 of Law no.196/2003 on preventing and fighting pornography.
Article 7 of the law states that "the natural and legal persons creating pornographic sites are obliged to password them, and the access to these will be allowed only after paying a fee per using minute, established by the creator of the site and declared at the fiscal bodies."
However, five years later after the law was adopted, no specific fee is foreseen in any normative act.
According to the ANC press release, its investigation revealed that "these websites, hosted in Romania, did not observe the legal requirements on access granted by a password (in most cases, even the minimum warning on the age of persons allowed to access them was absent) and did not request the payment of a fee per minute of use."
ANC President Liviu Nistoran declared that the list would not be made public, "to avoid encouraging their accessing in the following period; however, we will ensure that the access to such websites is blocked."
Internet providers are obliged to block users' access to the respective websites within 48 hours. Failure to block users' access is punishable by fines applied by the Police ranging from 10 000 to 50 000 RON (approx.
2500 - 12500 Euro).
As revealed by online newspaper Hotnews, the list was copied from a complaint submitted by a phisical person on 28 November that contained 46 websites. Until 2008 only nine complaints were received on this law and just one website was blocked for a short period in 2005 (newspaper Atac).
A scanned version list sent to the ISPs became available online at the end of last week on several blogs. The list contained a well-known User Generated video-sharing website (220.ro) , another domain name was just a redirect to a .com website and a lot of websites hosted on some free hosting accounts based in Romania.
The owners of some blocked websites complained about the decision and stated that they would take ANC to court since they were not informed by the Authority about any problems related to their websites which comply to the law. Since the blockage was made on the IP addresses, some websites just changed their IP in order to become available again. It is also unclear how a website could get off the list, since ANC claims there is no such procedure in place.
But the blocking system caused other legal websites to be blocked as well, with no official information on why this was happening. It is clear that only part of the over 1000 ISPs in the country implemented the measure requested by ANC, according the various reports from users from all over the country.
The measure to block access to websites via the ISPs was characterised by EDRi-member APTI Romania and other national civil liberties groups and ISP associations as a very dangerous measure and a direct attack to the freedom of expression. They have asked in a public letter to ANC the immediate revocation of the list, as an illegal and useless measure.
The civil society representatives explained to ANC there was a possibility, under the e-commerce law, to ask the owners of the respective web pages to comply with the law requirements by giving them an appropriate period of time to do so or even to fine them directly, without appealing to the ISPs for a illusory measure. They concluded that the present measure is just a censorship act, without providing any benefits to the a Safer Internet for children.
ANC Demands Blocking the Access to 40 Pornographic Websites (11.12.2008)
http://www.anrcti.ro/desktopdefault.aspx?tabid=3483
Telecom Referee asks blocking 40 pornographic websites. Only nine complaints in the past 2 years (only in Romanian, 13.12.2008) http://economie.hotnews.ro/stiri-telecom-5244280-update-arbitrul-telecom-cere-blocarea-accesului-40-site-uri-pornografice-doar-noua-sesizari-privind-astfel-site-uri-ultimii-doi-ani.htm
220.ro on the ANC blacklist (only in Romanian, 13.12.2008)
http://legi-internet.ro/blogs/index.php?title=220_ro_pe_lista_neagra_a_anc_ului&more=1&c=1&tb=1&pb=1
Number of visitors for 220.ro in the past days http://stat.trafic.ro/stat/220/vizitatori/zi/#stat
Public letter to ANC - Blocking 40 websites for your safety ?! (17.12.2008)
http://www.apti.ro/webfm_send/37
Law on fighting and combatting pornography 196/2003
http://www.legi-internet.ro/index.php?id=89&L=2
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5. Bulgarian Court annuls a vague article of the data retention law ============================================================
On 11 December 2008, the Bulgarian Supreme Administrative Court (SAC) annulled article 5 of the national legislation that implements the Data retention Directive, following a lawsuit initiated by Access to Information Program(AIP).
Article 5 of the Bulgarian Regulation # 40 that was issued by the State Agency on Information Technologies and Communication and the Ministry of Interior provided for a "passive access through a computer terminal" by the Ministry of Interior, as well as access without court permission by security services and other law enforcement bodies, to all retained data by Internet and mobile communication providers.
A five-member panel of the SAC annulled the article, considering that the provision did not set any limitations with regard to the data access by a computer terminal and did not provide for any guarantees for the protection of the right to privacy stipulated by Art. 32, Para. 1 of the Bulgarian Constitution. No mechanism was established for the respect of the constitutionally granted right of protection against unlawful interference in one's private or family affairs and against encroachments on one's honour, dignity and reputation.
The court also found that the text of Art. 5 of the Regulation providing that the investigative bodies, prosecutor's office and the court shall be granted access to retained data "for the needs of the criminal process," the security services - "for the needs of the national security", does not provide limits against violations of constitutionally granted rights of the citizens. Reference to specialized laws - such as Penal Procedure Code, Special Surveillance Means Act, Personal Data Protection Act, which specify conditions under which access to personal data shall be granted, was not provided either.
Furthermore, according to the court, Art. 5 of the Regulation contradicts the provision of Art. 8 of the European Convention on Human Rights.
The court emphasises that national legal norms shall comply with the established principle and shall introduce comprehensible and well formulated grounds for both access to the personal data of citizens and the procedures for their retention. Article 5 of the Regulation lacks clarity in terms of protection of the right to private and family life which contradicts the provision of Art. 8 of the ECHR, the texts of the Directive 2006/24/EC, and Art. 32 and 34 of the Bulgarian Constitution.
The decision or this court comes after an initial rejection of the demand by a first court panel on 17 July 2008. This is final and can't be appealled to higher competent courts of justice.
The Bulgarian Supreme Administrative Court (SAC) repealed a provision of the Data Retention in the Internet Regulation (11.12.2008) http://www.aip-bg.org/documents/data_retention_campaign_11122008eng.htm
Data Retention on the Internet - Legal Action by Access to Information Programme in Bulgaria - 2008 http://www.aip-bg.org/documents/data_retention_campaign_eng.htm
Supreme Administrative Court issues a good decision for the Bulgarian Internet (11.12.2008) http://blog.veni.com/?p=990
(Thanks to Veni Markovski - EDRi-member ISOC Bulgaria)
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6. Snooping law, "Lex Nokia", proceeding slowly but surely in Finland ============================================================
Earlier this year, in April, the Government of Finland presented a bill to the Parliament for an amendment to the Act on Data Protection of Electronic Communications. Raison d'être for the bill officially is that it would allow employers to investigate the log data of employees'
e-mails, if the company has reason to suspect that corporate secrets are leaking out of the company or that the employer's communication networks are being misused. The employer would not be allowed to read the content of the messages themselves, however. The bill has been dubbed "Lex Nokia" because it was sparked in 2006 by an announcement by prosecutor Jukka Haavisto that Nokia had been illegally monitoring contact information of its employees' e-mail in 2000 to 2001.
The public discussion about the proposed legislation has largely focused on the official need for the law. However, the bill in itself does not contain limitations restricting the snooping only to email logs, nor only to employers. The law is vague, and can be interpreted to cover nearly any IP-based telecommunication and in addition to companies, it also covers some "corporate subscribers", for example universities.
In spite of legal expert statements that the government's proposal violates the Finnish constitution, Constitutional Law Committee stated that the bill is not unconstitutional and that it can be passed as a regular law. Unlike many other countries, Finland does not have a Constitutional Court, instead a parliamentary committee investigates .
The right to confidential communication is a fundamental right guaranteed under the Finnish constitution, as well as by the European treaty on human rights. The Chancellor of Justice and several law professors have expressed concerns that Lex Nokia unnecessarily weakens these fundamental rights, while giving corporations excessive leeway. In effect, companies would have a higher authority to snoop on employees than the police have, and they would be able to do so without obtaining a warrant.
The measure was originally expected to come before the full Parliament for a vote in mid-December, but it did not pass through the Transport and Communications Committee as quickly as expected. The committee proposed some minor changes to the law, and three dissenting minority opinions were included in the statement. However, passage of the bill is nearly certain, as the government parties have agreed on the matter.
The Constitution of Finland (31.07.1999) http://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf
"Lex Nokia" gets blessing from Constitutional Law Committee (14.11.2008)
http://www.hs.fi/english/article/%E2%80%9DLex+Nokia%E2%80%9D+gets+blessing+from+Constitutional+Law+Committee/1135241092046
Legal experts say "Lex Nokia" violates constitution (20.11.2008)
http://www.hs.fi/english/article/Legal+experts+say+%E2%80%9CLex+Nokia%E2%80%9D+violates+constitution/1135241264898
Chancellor of Justice criticises controversial proposal for "Lex Nokia"
(2.12.2008)
http://www.hs.fi/english/article/Chancellor+of+Justice+criticises+controversial+proposal+for+%E2%80%9CLex+Nokia%E2%80%9D/1135241592550
(Contribution by Leena Romppainen - EDRi-member Electronic Frontier Finland )
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7. German Federal Archives provides Wikipedia with 100 000 images ============================================================
The German Federal Archives has donated almost 100 000 images to the Wikimedia Commons, as part of a cooperation between Wikimedia Germany and the Federal Archive. These images are mostly related to the history of Germany (including the Weimar Republic, the German colonial era, the Third Reich and Germany after reunification).
All the images are licensed Creative Commons Attribution ShareAlike 3.0 Germany License (CC-BY-SA). Wikimedia Germany and the Federal Archive have signed a cooperation agreement that, among other things, asserts that the Federal Archive owns sufficient rights to be able to grant this kind of license.
This is estimated to be the largest donation ever received by Wikimedia Commons, that is today a database of over 3 million media files.
The other part of the cooperation is a tool for linking people from a list compiled by the Federal Archive to the German Wikipedia Persondata and to the person authority file of the German National Library (something German Wikipedia has already been doing since 2005).
Angelika Menne-Haritz, vice-president of the Federal Archives in Berlin said that the public had a right to access the photos and the deal with Wikipedia would facilitate public access to the material.
Commons:Bundesarchiv (4.12.2008)
http://commons.wikimedia.org/wiki/Commons:Bundesarchiv
Interview: Cooperation between BundesArchive and Wikimedia (only in German,
4.12.2008)
http://netzpolitik.org/2008/interview-kooperation-von-bundesarchiv-und-wikimedia/
Wikipedia Receives German Pictorial History (6.12.2008) http://www.dw-world.de/dw/article/0,,3851534,00.html
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8. UK Government now in favour of the extension of the copyright term ============================================================
At UK Music's Creators' Conference on 1 December 2008, Culture Minister Andy Burnham announced the backing of the UK Government to extending the copyright term for sound recordings to 70 years.
The decision goes against the recommendations of Andrew Gowers, whose 2006 review of copyright is in favour of keeping copyright at 50 years. It is however more in line with the proposals made in February 2008 by EC Internal Markets commissioner Charlie McCreevy to increase the term of protection to
95 years.
Presently, the revenues from a sound recording goes to the musicians who performed on the recording and to the owners of the recording. Burnham clearly supports the former and called on the music business to make sure the measure benefits musicians and not the industry big companies. "We want the industry to come back with good, workable ideas as to how a proposal on copyright extension might be framed that directly and predominantly benefits performers - both session and featured musicians," he declared.
The EC proposition adopted on 16 July 2008 introduces the extension of the term not only for the performers but also for the producers. The proposal has been largely opposed, many arguing that the copyright extension will be detrimental to innovation and creativity and that other measures would be more appropriate and efficient to support aging performers.
The extension of the copyright term was also discussed on 2-3 December 2008 in the Competitiveness Council that backed the Progress report adopted at the end of November. The report states that the extension of the term to 95 years is considered by some Member States as too long, doubting the capacity of the proposal to reach its objective in a satisfactory and balanced way.
However, some of these Member States might accept a more moderate extension.
As a response to concerns expressed by some of the Member States that the measure might be discriminatory if only applied to the music sector, the presidency of the Council proposed that the extended term should cover audiovisual performers as well.
Concerning the right of session musicians to claim additional annual remuneration and the performers' option to recuperate their rights in the absence of exploitation by the phonogram producer, the presidency has proposed that such rights might not be waived and the "use it or lose it"
clause for copyright - where the ownership of forgotten recordings reverts to the performer - cannot be renounced by performers. Discussion on the topic should continue.
As to the question of the harmonisation of the method of calculating the term of protection of musical compositions with words, the Presidency suggested the limitation of the scope to musical compositions and lyrics specifically created to constitute a musical composition with words. The question of the period of application is still to be settled.
The draft Directive is also considered within the European Parliament. The non-leading Committee for Internal Market and Consumer Protection (IMCO) adopted the Emmanouil Angelakas' (EPP-ED - Greece) draft opinion on 2 December 2008. Just a few amendments were adopted, among them the application of the extended term of protection (95 years) not only to music performers but also to audiovisual performers.
On 19 January 2009, the Legal Affairs Committee is expected to adopt its report and the Parliament will vote on the proposal in plenary on 18 February 2009.
Government signals extension to copyright term (11.12.2008)
http://www.musicweek.com/story.asp?sectioncode=1&storycode=1036431&c=1
Music copyright extension - strings attached (12.12.2008) http://www.theregister.co.uk/2008/12/12/burnham_mccreevy_sound_recording_term_extension/
The Council of Europe Presidency PROGRESS REPORT - Proposal for a Directive of the European Parliament and of the Council Directive amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights (26.11.2008) http://register.consilium.europa.eu/pdf/en/08/st16/st16005.en08.pdf
Press release - 2910th meeting of the Council - Competitiveness (internal market, industry and research) (1-2.12.2008) http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/intm/104497.pdf
EDRigram - Extension of the copyright term for performers and record producers (30.07.2008) http://www.edri.org/edrigram/number6.15/extension-copyright-performers
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9. Spanish collective society fined for making clandestine wedding video ============================================================
The Spanish General Society of Authors and Editors (SGAE) has been fined for having placed a private detective in a restaurant in Seville, in 2005, to film a wedding in order to prove that the restaurant was using music for which it had paid no royalties.
The court in Seville where the action was heard found that the video presented by SGAE as proof against the restaurant was inadmissible because it was "a clear violation of the constitutional rights to a person's own image" and it was in breach of the privacy of the couple because it had been taken clandestinely. The law requires the "unequivocal consent of the affected person" in the treatment of his (her) personal data.
The society was given a 60 101 euro fine, imposed by the Spanish Data Protection Agency.
The case has brought up the fact that using private detectives to clandestinely check weddings in search of copyright infringements is a common practice for SGAE. "Using private detectives to investigate fraud is common. We will carry on doing it" said Pedro Farre, SGAE Director.
Concerning the fact that its detectives acted clandestinely he stated:
"There are times when in order to protect the legal good such type of proofs are necessary".
The court also decided that the detective had breached the law of private safety which forbids this type of professionals to use in their investigations "technical means that may infringe the right to honour, intimacy and the right to one's own image". Although SGAE argued that it did not specify to the detective what means to use in his investigation and that filming does not imply the generation of a personal data file, the court decision considered the video as belonging to the personal data category.
According to the law, personal data is "all numerical, alphabetical, graphic, photographic, acoustic or any other type of information susceptible of being collected, processed or transmitted referring to an identified or identifiable natural person" as was the case of the wedded couple.
The restaurant was however fined 43 179 euro for having used music without paying copyright fees on the basis of other proofs.
Farré declared that the Society was going to consider whether to appeal the decision.
Secret wedding video ruling is music to ears of privacy groups (15.12.2008) http://www.timesonline.co.uk/tol/news/world/europe/article5342297.ece
SGAE will have to pay 60.101 for recording a wedding without authorization(only in Spanish, 8.12.2008) http://www.elmundo.es/elmundo/2008/12/08/cultura/1228709280.html
SGAE will have to pay a 60.000 euros fine for recording a wedding without permission (only in Spanish, 7.12.2008) http://www.elmundo.es/elmundo/2008/12/07/cultura/1228662714.html
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10. ENDitorial: First FRA Conference on Fundamental Rights ============================================================
On 8 and 9 December 2008, the EU Agency for Fundamental Rights (FRA) held its first Fundamental Rights Conference in Paris. The event examined key issues and challenges related to the freedom of expression. The conference coincided with the 60th anniversary of the Universal Declaration of Human Rights and was co-organised by the French Ministry of Justice.
In his welcoming speech, Jacques Barrot, the Vice-President of the European Commission and Commissioner for Justice Freedom and Security, stressed out the fact that pluralism was a condition sine qua non for freedom of expression, but that there had to be limits in cases when the right to live was affected. Hatred, racism and xenophobia cannot be accepted therefore, a balance of competing rights has to be found. During his speech, Mr. Barrot also announced that a Europol unit for tracking "dangerous websites" would be set up in 2009.
Janez Lenarcic, the Director of the Office for Democratic Institutions and Human Rights (ODIHR) of the OECD, pointed out the differences in the legal systems of the OECD member states. What in some countries is considered to be part of the freedom of expression in other countries it can be considered to be a hate crime. Furthermore, in some countries ofthe OECD area, that he described as Potjomkin democracies,there are Human Rights problems.
Also, the representatives of the Council of Europe, Margaret Killerby, representing the Secretary General, and Ulrika Sundberg, representing the Commissioner for Human rights, stated that anti-terror legislation had a negative impact on the freedom of expression and that these measures on one side and human rights on the other had to be carefully balanced. In the area of the Council of Europe, journalists still face violence for practising their right to freedom of expression. Also their right to receive information anonymously from anyone is often challenged and has to be ensured.
In her Keynote speech, the French journalist Florence Aubenas stressed the fact that freedom of expression is not only challenged in distant countries of the CoE and OECD but that this is as well an issue in France. In a recent ranking of countries regarding freedom of expression that was published by Reporters without Borders, France was only ranked 45. A clear sign that the influence of the state over the media is present today in France.
During the rest of the conference, five working groups were established, covering some important aspects of the freedom of expression.
The working group on challenges to freedom of expression very much focussed on the challenges media and journalists face today. Problems with influences from states and commerce were discussed as well as challenges emerging from the discussion fora of online media and the increased publishing possibilities for the average citizen on the Internet.
FRA Fundamental Rights Conference
http://fra.europa.eu/fra/index.php?fuseaction=content.dsp_cat_content&catid=3e6c61340870c&contentid=492d3cdb312db
(contribution by Andreas Krisch - EDRi)
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11. Recommended Reading
============================================================
A new ENISA report explains the risks of Web 2.0 - photo sharing, wikis, social bookmarking and social networking - and "malware 2.0", a new breed of web-borne infections you can catch just by visiting a web page and gives advice to tackle them.
http://www.enisa.europa.eu/pages/02_01_press_2008_12_10_web2.html
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12. Agenda
============================================================
27-30 December 2008 Berlin, Germany
25C3: Nothing to hide
The 25th Chaos Communication Congress
http://events.ccc.de/congress/2008/
16-17 January 2009, Brussels, Belgium
Computers, Privacy & Data Protection conference CPDP 2009: Data Protection in A Profiled World?
http://www.cpdpconferences.org/
28 January 2009, Europe-wide
3rd Data Protection Day
http://www.coe.int/t/e/legal_affairs/legal_co-operation/data_protection/Data_Protection_Day_default.asp
7-8 February 2009, Brussels, Belgium
Free and Open source Software Developers' European Meeting (FOSDEM) http://www.fosdem.org/2009/
18-20 March 2009, Athens, Greece
WebSci'09: Society On-Line
http://www.websci09.org/
27-29 March 2009, Manchaster, UK
Oekonux Conference: Free Software and Beyond The World of Peer Production http://www.oekonux-conference.org/
29-31 March 2009, Edinburgh, UK
Governance Of New Technologies: The Transformation Of Medicine, Information Technology And Intellectual Property" An International Interdisciplinary Conference http://www.law.ed.ac.uk/ahrc/conference09/
1-4 June 2009, Washington, DC, USA
Computers Freedom and Privacy 2009
Proposal Submissions by 9 January 2009
http://www.cfp2009.org/
2-3 July 2009, Padova, Italy
3rd FLOSS International Workshop on Free/Libre Open Source Software Paper submission by 31 March 2009 http://www.decon.unipd.it/personale/curri/manenti/floss/floss09.html
13-16 August 2009, Vierhouten, The Netherlands Hacking at Random http://www.har2009.org/
23-27 August 2009, Milan, Italy
World Library and Information Congress: 75th IFLA General Conference and
Council: "Libraries create futures: Building on cultural heritage"
Call for papers by 15 January 2009
http://www.ifla.org/IV/ifla75/index.htm
10-12 September 2009, Potsdam, Germany
5th ECPR General Conference, Potsdam
Section: Protest Politics
Panel: The Contentious Politics of Intellectual Property First proposals to be submitted by 1 February 2009 http://www.ecpr.org.uk/potsdam/default.asp
16-18 September 2009, Crete, Greece
World Summit on the Knowledge Society WSKS 2009 http://www.open-knowledge-society.org/
October 2009, Istanbul, Turkey
eChallenges 2009
Call for papers by 27 February 2009
http://www.echallenges.org/e2009/default.asp?page=c4p
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13. About
============================================================
EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
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